State ex rel. Wettengel v. Zimmerman

• Decision Date: 28 September 1946
• Citation: 249 Wis. 237,24 N.W.2d 504
• Parties: STATE ex rel. WETTENGEL v. ZIMMERMAN, Secretary of State, et al.
• Court: Wisconsin Supreme Court

249 Wis. 237

24 N.W.2d 504

STATE ex rel. WETTENGEL

v.ZIMMERMAN, Secretary of State, et al.

Supreme Court of Wisconsin.

Sept. 28, 1946.

Petition for leave to commence an original action in this Court. Petition dismissed.

Upon the filing of the petition on September 13, 1946, an order was made requiring the respondents to show cause why the petitioner should not have leave to commence an action in this court in the name of the state of Wisconsin to enjoin the secretary of state and the state board of canvassers from certifying the name of Joseph R. McCarthy as the nominee for United States Senator of the Republican Party at the general election to be held in Wisconsin, on November 5, 1946, or if his name has been certified, why such certification should not be cancelled and new certificates issued, giving the name of the true candidate or nominee of said party nominated at the primary election on August 13, 1946, and why the votes cast at said primary for said Joseph R. McCarthy were and are not void and why the votes, if any, to be cast for said Joseph R. McCarthy are and will not be void.

The order to show cause was returnable on the 20th day of September, 1946, at which time the petitioner appeared in person and by his counsel, Messrs. George B. Skogmo, Walter D. Corrigan, Sr., A. J. Bieberstein and Perry J. Stearns, and the respondents, John E. Martin and Joseph R. McCarthy appeared in person and by counsel, Messrs. Michael G. Eberlein and J. G. Hardgrove for McCarthy, Warren H. Resh, Assistant Attorney General for the Secretary of State and the State Board of Canvassers.

From the petition it appears that Hon. John E. Martin, Attorney General of the State of Wisconsin, was asked to bring this action on behalf of the state and declined to do so; that Robert M. LaFollette, Jr., Joseph R. McCarthy and Perry J. Stearns duly filed their nomination papers as required by ch. 5, Title II of the Wisconsin statutes, and their names were printed on the official ballot of the Republican Party at the primary election held on August 13, 1946, as the only candidates for nomination as the candidate of the Republican Party for United States Senator in the election to be held on the Tuesday next succeeding the first Monday in November in the year 1946, to-wit: November 5, 1946; that the primary election was held on August 13, 1946; that Joseph R. McCarthy was certified as the person receiving the greatest number of votes at such primary; that Art. VII, sec. 10 of the Wisconsin constitution provides as follows: ‘Section 10. Each of the judges of the supreme and circuit courts * * * shall hold no office of public trust, except a judicial office, during the term for which they are respectively elected, and all votes for either of them for any office, except a judicial office, given by the legislature or the people, shall be void;’ that the office of United States senator is an officer of public trust and said Joseph R. McCarthy as a duly elected, sworn and qualified circuit judge of the tenth judicial circuit, is now prohibited by the provisions of said sec. 10 from holding the office of United States senator until after the first Monday of January, 1952, when his present term as such circuit judge expires, and all votes cast for him at such primary election are void; that unless the true nominee of the Republican Party of Wisconsin for United States senator in the general election of November 5, 1946, is now judicially determined and the name of said Joseph R. McCarthy should appear on the ballots in said general election as the Republican candidate for United States senator, and said general election be held, and thereafter the eligibility of said circuit judge be judicially determined adversely to him, the effect would be to disfranchise the great body of the Republican voters of Wisconsin, and possibly elect the candidate of some other minority party, due to the finding of this Court in such later action, that votes cast for such circuit judge as the Republican candidate for United States senator are null and void.

The prayer of the petition is substantially set out in the statement of the order to show cause.

At the close of the oral argument upon the motion for leave to commence an original action in this Court, it was stipulated by counsel that if upon consideration of the matters urged by counsel for the respective parties, this Court should be of the view that it should take jurisdiction of the matters set out in the petition, then and in that event, the petition for leave to commence the action should stand as and for the petition in the action and that the respondents moved to quash the same.

George B. Skogmo and Walter D. Corrigan, Sir., both of Milwaukee, and A. J. Bieberstein, of Madison, and Perry J. Stearns, of Milwaukee, for petitioners.

Michael G. Eberlein, of Shawano, and J. G. Hardgrove, of Milwaukee, for respondent Joseph R. McCarthy.

John E. Martin, Atty. Gen., and Warren H. Resh, Asst. Atty. Gen., for respondents Secretary of State and State Board of Canvassers.

ROSENBERRY, Chief Justice.

The petition of the relator concerning as it does the choice of a senator of the United States must be determined in accordance with federal law.

Article I of the constitution of the United States provides:

‘Section 3. * * * No person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.’ * * *

‘Section 4. The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators. * * *’ ‘Section 5. Each House shall be the Judge of the Elections, Returns, and Qualifications of its own Members * * *.’

It is the contention of the relator that the United States Congress not having acted under sec. 4 to prescribe the times, places and manner of holding elections that all election matters and machinery of elections is in the hands of the state, except as to the national Corrupt Practices Act, 2 U.S.C.A. § 241 et seq.

It is further argued that there is room for a state constitution and state laws to fulfill their mission without conflict with the federal constitution or the jurisdiction and power of the senate; that when state provisions have served their purpose and the election has been certified, the senate has jurisdiction of the eligibility of the person elected to be senator.

In the celebrated case of Dred Scott v. Sandford, 1857, 19 How. 393, 15 L.Ed. 691, it was held that in the United States a double citizenship exists. The term as used in our law applies to membership in the nation considered as a whole and to membership in the state in which the individual may reside. The citizens of the United States resident in each state are subject to two governments, one state, the other national. Every citizen owes allegiance to both of these governments and within their respective spheres must be obedient to the laws of each. In return he is entitled to demand protection from each within its own jurisdiction. While the major part of the decision in this case has become obsolete by reason of the subsequent adoption of the fourteenth and fifteenth amendments, so far as we are able to ascertain, the decision of the Supreme Court of the United States in that case relating to dual citizenship has never been overruled or modified.

The argument in support of the petition does not give full weight to this fundamental principle in our constitutional law. The idea that in the election of a United States senator the state has exclusive jurisdiction of the process until the moment that a candidate certified as having a majority of the votes cast for the office presents himself at the bar of the senate cannot be sustained. While the fact that the same persons act as election officers and that the election is held at the same time and place as are the elections held for state officers, may obscure but it does not destroy the fact that these officers act in the two capacities; that they so act is conclusively shown by the fact that Congress may at any time make or alter regulations relating to the election of United States senators as it chooses except that it may not change the places of choosing senators.

When the Wisconsin legislature enacted a law relating to the times, places and manner of holding elections for senators and representatives, the times and places so fixed and the manner so prescribed apply to a choice of a United States senator not because of any provision of state law but because of the provisions of the United States constitution.

The contention that the election process is wholly within the jurisdiction of the state and no conflict can arise until some candidate has been certified to the United States Senate as the elected representative of the state is unsound.

The proceedings up to and including the issuance of the certificate of election are wholly within the control of Congress. It was formerly held that primaries were not a part of the...